This petition is filed for quashing the proceedings in respect of
the petitioners in C.C.No.209 of 2012 on the file of the Court of Judicial
Magistrate, Thiruppathur Taluk, Sivagangai District.

2.The petitioners are accused 1 and 2 in C.C.No.209 of 2012 on
the file of the Judicial Magistrate Court, Thirupathur. The petitioners were
the elected President and Vice President of Piramanampatti Village Panchayat.
While implementing the Central Government Scheme to provide 100 days work to
rural people, some irregularities were noticed by the Block Development
Officer and a complaint was lodged by the Block Development Officer against
the petitioners and the Panchayat Clerk on 26.06.2009. The complaint was
registered in Crime No.40 of 2009 for offences punishable under Sections
477(A), 408 and 409 of I.P.C. After completing investigation, the Inspector
of Police, Thirukostiyoor Police Station, filed charge sheet and the case was
taken on file in C.C.No.209 of 2009 for offences punishable under Section
477A, 408 and 409 of I.P.C. Challenging the proceedings, the above Criminal
Original Petition has been filed by the petitioners 1 and 2 who were the
President and Vice President of Piramanampatti Village Panchayat and the
Panchayat Clerk. The First Information Report as well as the charge sheet
would disclose specific allegations that the petitioners and the Panchayat
Clerk have jointly misappropriated a sum of Rs.5,14,000/-.

3.The learned counsel for the petitioners submitted that the
petitioners are not public servants as defined under Section 21 of Indian
Penal Code and the ingredients for the offences under Section 409, 477 of
I.P.C. are not made out. Stating that there is no entrustment of any
property with the petitioners to attract the provisions, the learned counsel
for the petitioners submitted that the petitioners are not guilty and that
the complaint as well as the charge sheet are liable to be quashed on this
ground alone. It is further contended that the second respondent / de-facto
complainant has not specifically indicated the entire amount distributed to
the workers as per the release order and the second respondent having signed
in every release order of the fund allotted to the village panchayat under
the National Rural Employment Guarantee Scheme has given the complaint
contrary to the entire records of the panchayat. It is further contended by
the petitioners that the amount which was released for disbursement has been
received only by the Panchayat Clerk in his name and that the petitioners
cannot be roped in even if there is any misappropriation by the third
accused. Finally, it was stated that the Panchayat Clerk admitted his guilt
of misappropriating a sum of Rs.5,14,000/- and that he had given
statement to the effect that the misappropriation done by him was without the
knowledge of the petitioners. It is contended that the said Panchayat Clerk
had repaid the entire amount which was stated to be the amount
misappropriated by the petitioners joining with the Panchayat Clerk. Hence,
it was further contended that there is no loss to the panchayat as the amount
misappropriated was accounted by the Panchayat Clerk.

4.The learned counsel for the petitioners then made an attempt to
point out some discrepancies in the statement of witnesses and tried to point
out certain infirmities in the whole case of prosecution. Since the
contentions of the petitioners relying upon the statements obtained from the
witnesses in the course of investigation are factual, this Court cannot
entertain the plea of petitioners denying the allegations against the
petitioners. The only legal issue that arise for consideration in this case
is whether the petitioners who were functioning as President and Vice
President of the Village Panchayat can be prosecuted for offences under
Sections 408 and 409 or under 477 I.P.C.

5.The allegation of misappropriation as against the petitioners
are well-founded. Having regard to the nature of complaint and the charges
framed against the petitioners, this Court has no hesitation to hold that the
petitioners have been rightly charged for the offence of misappropriation.
The question is whether the petitioners can be prosecuted for criminal breach
of trust as a public servant to attract Section 409. Section 409 I.P.C read
as follows:

?409. Criminal breach of trust by public servant, or by banker,
merchant or agent ? Whoever, being in any manner entrusted with property, or
with any dominion over property in his capacity of a public servant or in the
way of his business as a banker, merchant, factor, broker, attorney or agent,
commits criminal breach of trust in respect of that property, shall be
punished with [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine.?

6.Of course Section 409 I.P.C. is attracted only if the accused
is a Government servant or any other person mentioned therein and a property
is entrusted or its control is vested in him. Under Section 21 of I.P.C.
Government servant has been defined as follows:

27 [(Third) ?Every Judge including any person empowered by law to
discharge, whether by himself or as a member of any body of persons, any
adjudicatory functions;]
(Fourth) ? Every officer of a Court of Justice 28 [(including a liquidator,
receiver or commissioner)] whose duty it is, as such officer, to investigate
or report on any matter of law or fact, or to make, authenticate, or keep any
document, or to take charge or dispose of any property, or to execute any
judicial process, or to administer any oath, or to interpret, or to preserve
order in the Court, and every person specially authorized by a Court of
Justice to perform any of such duties;(Fifth) ? Every juryman, assessor, or
member of a panchayat assisting a Court of Justice or public servant;
(Sixth) ? Every arbitrator or other person to whom any cause or matter has
been referred for decision or report by any Court of Justice, or by any other
competent public authority;

(Seventh) ?Every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;
(Eighth) ? Every officer of 29 [the Government] whose duty it is, as such
officer, to prevent offences, to give information of offences, to bring
offenders to justice, or to protect the public health, safety or convenience;

(Ninth) ? Every officer whose duty it is, as such officer, to take, receive,
keep or expend any property on behalf of 29 [the Government], or to make any
survey, assessment or contract on behalf of 29 [the Government], or to
execute any revenue process, or to investigate, or to report, on any matter
affecting the pecuniary interests of 29 [the Government], or to make,
authenticate or keep any document relating to the pecuniary interests
of 29 [the Government], or to prevent the infraction of any law for the
protection of the pecuniary interests of 29 [the Government] 30 [***];
(Tenth) ? Every officer whose duty it is, as such officer, to take, receive,
keep or expend any property, to make any survey or assessment or to levy any
rate or tax for any secular common purpose of any village, town or district,
or to make, authenticate or keep any document for the ascertaining of the
rights of the people of any village, town or district;
31 [(Eleventh) ?Every person who holds any office in virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or to
conduct an election or part of an election;]
32 [(Twelfth) ?Every person?

(a) in the service or pay of the Government or remunerated by fees or
commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by
or under a Central, Provincial or State Act or a Government company as
defined in section 617 of the Companies Act, 1956 (1 of 1956).] Illustration
A Municipal Commissioner is a public servant. Explanation 1.?Persons falling
under any of the above descriptions are public servants, whether appointed by
the Government or not. Explanation 2.?Wherever the words ?public servant?
occur, they shall be understood of every person who is in actual possession
of the situation of a public servant, whatever legal defect there may be in
his right to hold that situation. 33 [Explanation 3.?The word ?election?
denotes an election for the purpose of selecting members of any legislative,
municipal or other public authority, of whatever character, the method of
selection to which is by, or under, any law prescribed as by
election.] 34 [***] STATE AMENDMENT
(Rajasthan) ?In section 21, after clause twelfth, the following new clause
shall be added, namely:? ?Thirteenth.?Every person employed or engaged by any
public body in the conduct and supervision of any examination recognised or
approved under any law. Explanation.?The expression ?Public Body? includes?

(a) a University, Board of Education or other body, either established by or
under a Central or State Act or under the provisions of the Constitution of
India or constituted by the Government; and

7.The term public servant denoted in 12th description include a
person in service or pay of a local authority. Though the petitioners were
not paid employees of the local body, they are in the service of a local
authority. Since the person who is in service or pay of a local authority
have been separately categorised, this Court is of the view that the
petitioners though are the elected President and Vice President of the
panchayat can also be treated as Government servant having regard to the
object in establishing local bodies as a self-government under our
Constitution and the functions of the petitioners 1 and 2 and their
corresponding obligations. Similarly, the ninth description found in Section
21 of I.P.C. also will include even the elected President while administering
the funds of Central Government.

8.Under the National Rural Employment Guarantee Scheme the funds
are allotted to every panchayat and it is only the President and Vice
President who are entitled to administer the funds as per the scheme. Hence,
there is entrustment of property as contemplated under Section 406 to 409 of
I.P.C.

9.The learned counsel for the petitioner relied upon a judgment
of the Hon’ble Supreme Court in the case of S.W.Palanitkar and others v.
State of Bihar and another reported in (2002) 1 SCC 241. Since there was
nothing to show that any property was entrusted to any of the accused nor
there is material that the accused have domain over the any property of the
complaint it was held by the Hon’ble Supreme Court that every breach of trust
may not result in a penal offence of criminal breach of trust unless there is
evidence of a mental act of fraudulent misappropriation. Since even in the
complaint in that case there was no allegation regarding entrustment of any
property and hence, the Hon’ble Supreme Court has observed that the appellant
therein have not committed any offence punishable under Section 406 of I.P.C.
The learned counsel for the petitioners then relied upon a judgment of the
learned Single Judge of this Court in the case of Shanmugam and others v.
State of Tamil Nadu rep. by Inspector of Police, CCIW (CID), Trichy reported
in 2000 (3) MWN (Cri) 133 wherein the Vice President of a Cooperative Society
was held to be not a public servant as defined under Section 21 of I.P.C.
Relying upon the earlier judgment of this Court, it was held that the
misappropriation attracting Section 477 was held to be bad and the offence
was altered into one under Section 406 I.P.C. The learned counsel for the
petitioners further relied upon another judgment of the Hon’ble Supreme Court
in the case of State of Maharashtra v. Laljit Rajshi Shah and others reported
in 2000 SCC (Cri) 523. The Hon’ble Supreme Court dealt with an issue whether
the Chairman of the Cooperative Society under the Maharashtra Cooperative
Societies Act can be held to be a public servant for the purpose of Section
21 of IPC. It is to be noted that the Hon’ble Supreme Court followed yet
another judgment of the Hon’ble Supreme Court in the case of Ramesh
Balkrishna Kulkarni v. State of Maharashtra reported in (1985) 3 SCC 606
wherein a municipal councillor was held to be not a public servant within the
meaning of Section 21 of I.P.C. The role of Municipal Commissioner under the
provisions of Maharashtra Municipalities Act,. 1965 is quiet different.
Despite the existence of provisions namely Section 302 of Maharashtra
Municipalities Act whereunder every councillor and officer or servant of a
council was deemed to be a public servant within the meaning of Section 21 of
I.P.C. it was held in that case that the legal fiction cannot be extended to
another statute. Hence, it is evident while interpreting the scope of
Section 21 of I.P.C., the Hon’ble Supreme Court has held that even though the
legislature refers to the provisions of Section 21 of I.P.C. in the statute,
and define a public servant, that officer cannot be prosecuted for an offence
under a different statute by adopting the well-known principles on
construction or interpreting statutory provision creating a legal fiction.

10.Therefore, it can be deduced from the judgment of the Hon’ble
Supreme Court that the question whether a person is a pubic servant can be
taken from the provisions of a statute only for the purpose of the enactment
and cannot be extended to another statute. In this case, the petitioners are
entrusted with the funds allotted by the Central Government under a scheme.
The administrators of the fund, the petitioners are liable to account for the
Government. Since the allegation is that the petitioners have
misappropriated the funds, they are liable to be prosecuted for the offence
of misappropriation. Having regard to the facts and circumstances of this
case, this Court is of the view that the petitioners are liable to be
prosecuted for the offence punishable under Section 409 I.P.C. As the
entrustment of the funds with the petitioners under the Central Government
scheme makes them accountable. This interpretation would serve the purpose
keeping in mind the laudable object behind the introduction of the Central
Government Scheme namely National Rural Employment Guarantee Scheme. The
learned counsel for the petitioners further contended that the entire money
found to be misappropriated has been deposited by the Panchayat Clerk
admitting guilty and that therefore, the petitioners cannot be prosecuted
further. No material is produced before this Court to show that the
Panchayat Clerk has admitted his guilt. Merely because the amount is paid by
the Panchayat Clerk, it cannot be taken that the petitioners are discharged.
This may be a factor that can be pointed out on behalf of the petitioners in
defence to escape from the penal liability after full-fledged trial. Hence,
preserving liberty to the petitioners to raise all these factual contentions
before the trial Court at the time of trial, this Criminal Original Petition
is dismissed. Consequently, the connected Criminal Miscellaneous Petition is
closed.